quest to be lawful; upon pain of forfeiture to the person s. 4. s. 5 & 7. bates. tions. 5 Eliz. 1. c. J. s. 1. Eng. Due execution of the writ de ex cited, of double damages and costs, to be recovered by Penalty. action of debt, or on the case, in any court of record; and also of £10. for every person so cited, one half to the king, and the other half to him that will sue in any court of record by writ, information, bill, or plaint. Provided, (s. 4.) that it shall be lawful for every archbishop to cite any person inhabiting within his province, for causes of Proviso as to heheresy, if the ordinary immediate consent, or do not resy. his duty And provided (s. 5 & 7.) that this act shall not extend to the prerogatives of the archbishops of Can- Proviso as to proterbury and York, of calling persons for probate of testaments within their respective provinces. By s. 6. no s. 6. archbishop, &c. or other having spiritual jurisdiction, Fees for citashall demand more for the seal of any citation, than 3d. upon the pains before limited. The jurisdiction of the ecclesiastical courts is aided by the 5 Eliz, c. 23. Eng. which ecites, (s. 1.) that divers offences appertaining to the jurisdiction of the ecclesiastical courts and judges, are many times unpunished for want of the due execution of communicato capiendo prothe writ de excommunicato capiendo; for that the said writ vided for. is not returnable into any court that might have the judgment of the well executing and serving of the said writ, &c; and therefore enacts, (s. 2.) that every writ of excommunicato capiendo, that shall be awarded out of the court of chancery against any person within the realm, shall be inade in terr, and returnable in the court of K. B. in the term after the teste; and said writ shall contain 20 days between the teste and the return: And after the said writ shall be so made and sealed, it shall be forthwith brought into said court of K. B. and there, in the presence of the justices, opened and delivered of record to the sheriff, or other officer, or his deputy: And if the writ be not duly returned, or any default be in the not executing said writ, the justices shall assess such amercement upon the sheriff, or other officer, as shall be thought meet; which amercement shall be estreated into the exchequer. By s. 3. the sheriff, &e. shall not be compelled to bring the body of such person named in the writ into the court at the day of return, but shall only return the writ with de claration S.. 5. 3. S. s. 5. Penalty for dis- claration briefly how he hath executed the same. And by s. 4. if the sheriff, &c. shall return, that the party cannot be found within his bailiwick, the justices shall award a cupias against the person named in the excommunicato capiendo, returnable in term time, 2 months at least after the teste, with a proclamation to be contained within the writ, that the sheriff, &c. in the full county court, or else at the general assizes and gaol delivery, or else at a quarter sessions, shall make proclamation 10 days at least before the return, that the party shall within 6 days after such proclamation, yield his body to the prison of the said sheriff, &c. according to the first writ of excommunicato capiendo, upon pain of forfeiture of £10. And thereupon, after the proclamation had, and the 6 days past, the sheriff, &c. shall make return of the capias into said court of K. B. of all that he hath done, and whether the party have yielded his body to prison or not. By s. 5. if the parties have not yielded their bodies to prison according to the proclamation, every such person shall, for every default, forfeit to the crown £10. which shall be estreated into the exchequer. And by s. 6. the justices shall thereupon award one other capias with like proclamation, and a pain of £20. to be mentioned in the Second capias. 2d writ and proclamation; and the sheriff, &c. shall execute the same in like manner as the first. And if the sheriff, &c. return upon the 2d capias, that he hath made the proclamation, and that the party hath not yielded his body to prison, then the said party shall forfeit to the crown £20. which the justices of K. B. shall likewise cause to be estreated. And by s. 7. the justices shall likewise award one other capias, with like proclamation and pain of forfeiture as was contained in the 2d capias; and the sheriff, &c. shall execute the 3d capias in like manner as the 1st and 2d writs. And if the sheriff, &c. shall make return of the 3d capias, that the party hath not yielded his body to prison, such party shall forfeit to the crown other £20, which shall likewise be estreated: and thereupon the said nalty of £20. justices shall award a capias, with like proclamation, and continued infi- like pain of forfeiture of £20. and the said justices shall have power infinitely.to award such process of capias $. 6. s. 7. Third capias. Cap'as, and pe-. nitely. s. 8. the party. return. s. 10. receive and sig. s. 11. with like proclamation, and pain of forfeiture of £20. until by return of some of said writs it shall appear that the party hath yielded himself to the custody of the said sheriff, &c. By s. 8, when any person shall yield his body to the sheriff, &c. upon any of the said writs of capias, he shall Imprisonment of remain in prison without bail, baston, or mainprize, as if he had been apprehended upon the excommunicato capiendo. By s. 9. if any sheriff, &c. make an untrue return upon any of the said writs, that the party hath not Forfeiture of sheriff for false. yielded his body upon the proclamations, such sheriff, &c. shall forfeit £40. which the party grieved shall recover by action of debt, &c. in any court of record. By s. 10. all archbishops and bishops, and others having autho- Archbishops to rity to certify any person excommunicated, shall have like nfy submissions. authority to receive the submission of the person excommnunicated, and him to absolve and release; and the same to signify into the chancery, and thereupon to have such writs for the deliverance of the person absolved, as heretofore. Provided (s. 11.) that in Wales, the counties palatine, and in the cinque ports, after any significavit Proviso as to being of record in the chancery, the tenor of such sig- Wales, &c. nificavit by mittimus shall be sent to the head officers of the county in Wales, &c. within whose jurisdiction the offender shall be resiant, viz. to the chancellor or chamberlain for the county of Lancashire, and Chester; and for the cinque ports, to the lord warden; and for Wales, and Ely, and the county of Durham, to the chief justice or justices there; and the said officers shall have power to make like process to the inferior officers there, returnable before the justices there at their next sessions or courts, 2 months at least after the teste of such process; so as they shall proceed in their sessions and courts as the justices of the court of K. B. are so limited in term-times to do. By s. 12. any person at the time of any such capias awarded, being in prison, or beyond the seas, or within Saving for dis age, or non sane memorie, or woman covert, shall not abled persons. incur the forfeitures aforementioned; and the party grieved may plead every such matter in bar, upon the distress or other process that shall be made for levying the said forfeitures. And by s. 13. if the offender, against whom s. 12. s. 13 writ. Addition of par. whom such writ of excommunicato capiendo shall be ty required in awarded, shall not in the same writ have a sufficient addition, according to the 1 Hen. 5. c. 5.; or if in the sigCauses of excommunication to be nificavit it be not contained, that the excommunication specified. doth proceed upon some cause or contempt of some original matter of heresy, or refusing to have his child baptized, or to receive the communion, or to come to divine service, or error in matters of religion or doctrine, incontinency, usury, simony, perjury in the ecclesiastical court, or idolatry, then all forfeitures limited against such persons shall be void; and by way of plea to be allowed to the party grieved. And by s. 14. if the Addition with a addition shall be with a nuper of the place, then, one writ of proclamation, (without any pain expressed) shall be awarded into the county where the offender shall be most commonly resiant at the time of awarding the first capias with pain, returnable the day of the return of the first capias. And if such proclamation be not made in the county where the offender shall be most commonly resiant, such offender shall sustain no forfeiture for not yielding his body. There is no statute in Ireland, similar to the 23. Hen. 8. c. 9. or 5 Eliz. c. 23, nuper. s. 14. $ 2. Cases wherein The statutes which relate to the jurisdiction of the court military, or court of chivalry; and of the courts maritime, or admiralty courts, and which statutes define the injuries cognizable in these courts respectively, will be found in a preceding chapter of this book, II. With respect to the encroachment of jurisdiction, the writ of pro- for which injury a remedy is provided by the writ of pro13Edw. 1. st. 4. hibition issuing out of the court of king's bench; the hibition lieth not. E. & I. 13 Edw. 1. st. 4. E. & I. declares, that the clergy shall not be punished if they hold plea in court christian of such things as be merely spiritual, viz. of penance enjoined by prelates for deadly sin, as fornication, adultery, and the like, for which sometimes corporal penance, and sometimes pecuniary, is enjoined, especially if a freeman be convict of such things. Also if the prelates punish for leaving the church yard unclosed, or for that the church is uncovered, or not conveniently decked, in which cases none other penance can be enjoined but pecuniary. And if a parson demand of his parishioners c. 1. E. & L. where tithes be Exception. parishioners oblations or tithes due or accustomed, or if a parson sue against another parson for tithes greater or smaller, so that the fourth part of the value of the benefice be not demanded; or if a parson demand mortuaries where a mortuary hath been used; and if a prelate (or patron) demand of a parson a pension due to him; all such demands are to be made in a spiritual court: And for laying violent hands on a clerk, and cause of defamation, it shall be tried in a spiritnal court, when money is not demanded, but a proceeding for punishment of sin. In all cases afore rehearsed, the spiritual judge shall have power to take cognizance, notwithstanding the king's prohibition. And by the 9 Edw 2. st. 1. c. I. 9 Edw. 2 st. 1. E. & I. in tithes, obventions, oblations, mortuaries, (when they are propounded under these names) the king's pro- No prohibition hibition shall hold no place. But if a clerk sell his tithes, demanded. being gathered, if the money be demanded before a spiritual judge, the King's prohibition shall lie, for the spiritual goods are made temporal. But by this statute (c. 2.) if debates arise upon the right of tithes, having original from the right of patronage, and the quantity of the controverted, tithes come to the fourth part of the goods of the church, prohibition lies. the king's prohibition shall bold place, if the cause come before a judge spiritual. Also if a prelate enjoin a pe- So if pecuniary nance pecuniary, and it be demanded, the king's procla- joined. mation shall hold place; but if prelates enjoin a penance corporal, and they which be punished will redeem such penance by money, if the money be demanded before a judge spiritual, the king's prohibition shall not hold place. But by c. 3 & 4. in cases of laying violent hands upon a clerk, or in cases of defamation, if the offender will redeem the penance corporal (which by this statute the late may enjoin) by giving money to the prelate, or the party grieved, it shall be required before the prelate, and the king's prohibition shall not lie. And by the pre ረ. 2. If right of tithes » penance en c. 3 & 4. Exception. 1 Edw. 3. st. 2. c. 11. E. & I. when clerks or others have 1 Edw. 3. st. Q. been indicted in the turn, and after their deliverance do c. 11. E. & I. sue in the spiritual court against the indictors, surmising No suit in spirithat they defamed them; in such case every man grieved that court shall have a prohibition formed in the chancery upon his s case. tual ag |